Judgment : ( 1 ) THE sole appellant was put on trial to face charges under Sections 420, 468, 471 of the Indian Penal Code as also under Sections 7 and 13 (2) of the Prevention of Corruption Act on the allegation that the appellant by putting his LTI on the pay slip of the complainant Indradeo Yadav took out wages of Rs. 2929/- of the complainant and that the appellant on demand took rs. 200/- as illegal gratification. The trial court while acquitting for the charges under Sections 7 and 13 (2) of the Prevention of Corruption Act, did find the appellant guilty for the charges under Sections 420. 468 and 471 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years on each count and also sentenced him to pay a fine of Rs. 500/-under Section 468 of the Indian Penal Code and in default to undergo further rigorous imprisonment for three months. The sentences were ordered to be run concurrently. ( 2 ) THE case of the complainant Indradeo yadad (P. W. 5) is that he was working as dumper Khalasi in Gonudih Colliery under the appellant, who was working as Dumber in-charge and used to take unofficial work from the complainant not only for himself but also for other and when the complainant made request from the appellant not to take personal work then the appellant told him that he will not take personal work provided he gives Rs. 200/- every month. Thereupon the complainant told the appellant to give his pay card so that he may take payment of his wages and to oblige him. Further case of the complainant is that on 17-5-1993 he went to the office of the cbi and submitted written report (Ext. 2/1)to the Superintendent of Police, CBI alleging therein that appellant has demanded rs. 200/- as reward for not putting him to harassment. The matter was referred to the inspector Nripendra Mohan Prasad Sinha (P. W. 8) for verification, who on its verification found the allegation, prima facie, true and consequently submitted verification report (Ext. 6) to the Superintendent of Police, Dhanbad. Thereafter first information report (Ext. 8) was registered. 200/- as reward for not putting him to harassment. The matter was referred to the inspector Nripendra Mohan Prasad Sinha (P. W. 8) for verification, who on its verification found the allegation, prima facie, true and consequently submitted verification report (Ext. 6) to the Superintendent of Police, Dhanbad. Thereafter first information report (Ext. 8) was registered. Thereafter a plan was made to lay a trap and accordingly, independent witnesses, namely, indradeo Yadav (P. W. 5) and Gautam Kumar das (P. W. 1) were called and after doing formalities of pre-trap exercises, preliminary memorandum (Ext. 9) was drawn. During said course, currency notes produced by the complainant were treated with phenolphthalein power and were given back to the complainant after its numbers were noted in the memorandum with the instruction to him as well as to the witnesses to hand over the same to the appellant only when he makes demand and then to convey it to the members of the trap team by giving signal. On the next day, i. e, 18-5-1993 as per the plan, the complainant, independent witness and other officials of the CBI came to the office of the appellant but they were informed that appellant is not present there and has gone to his residence. On getting this information, members of the raiding party came to the residence of the appellant and the complainant as well as Gautam Kumar Das knocked the door of his quarter and rest of the members took suitable position in the residential premises. The appellant came out, he asked about the identity of said gautam Kumar Das and when it was told by the complainant that he is his relative, the appellant told the complainant to ask him to go out of his house. Thereafter the appellant took the complainant to the drawing room and demanded Rs. 200/- and on being tendered, he accepted and kept it over a cot. Upon it when signal was given T. J. Ghose, Investigating Officer (P. W. 10) as well as other members of the raiding party rushed towards the room and caught hold of the hands of the appellant. Appellant became perplexed and could not offer any explanation and then Rs. 200/- tainted money(Exts. Upon it when signal was given T. J. Ghose, Investigating Officer (P. W. 10) as well as other members of the raiding party rushed towards the room and caught hold of the hands of the appellant. Appellant became perplexed and could not offer any explanation and then Rs. 200/- tainted money(Exts. III to III/3) which was lying over the cot was recovered and numbers of the tainted money were found to be the same as mentioned in the preliminary memorandum and thereafter phenolphthalein test was undertaken whereby both the hands of the appellants as well as cloth on which tainted money was found lying were subjected to phenolphthalein test which were found positive and accordingly, samples of all the three solutions were kept in a file. When a search of the house was made Rs. 2929/- (Exts. v to v/33) as well as pay card were recovered which were seized under Ext. 10. Thereafter memorandum of recovery (Ext. 11) was prepared. In course of investigation, those three samples were sent for its chemical examination to Director, central Forensic Science Laboratory, Calcutta. On being examined contents of Sodium Carbonate were found in all the three samples and accordingly, Report (Ext. 7) was submitted. ( 3 ) AFTER completion of investigation and after sanction of the prosecution was accorded under Ext. 2, charge sheet was submitted and accordingly, cognizance of the offence was taken. When the charges were framed, appellant pleaded not guilty and claimed to be tried. ( 4 ) IN course of trial, the prosecution in order to establish the charges examined as many as ten witnesses to prove that appellant accepted Rs. 200/- as illegal gratification when on demand it was tendered by the complainant. ( 5 ) AFTER closure of the prosecution case the appellant was questioned under Section 313 of the Code of Criminal Procedure about the incriminating circumstances appearing against him to which he denied and took the plea that he had given Rs. 3000/- to the complainant as loan at the time of marriage of his daughter. ( 5 ) AFTER closure of the prosecution case the appellant was questioned under Section 313 of the Code of Criminal Procedure about the incriminating circumstances appearing against him to which he denied and took the plea that he had given Rs. 3000/- to the complainant as loan at the time of marriage of his daughter. The trial court after scrutinizing the testimonies of the witnesses did find inconsistencies on the version of the complainant as testified during evidence, vis-a-vis the allegation made in the complaint as also in the evidence of P. W. 1 on the point of the place where tainted money was demanded and accepted by the appellant and at the same time, the court below did not find the testimonies of other witnesses, namely, Mritunjoy Kumbhakar (P. W. 3) as well as Nripendra Mohan Prasad Sinha (P. W. 8) and Tapan Jyoti Ghose, Investigating Officer (P. W. 10)trustworthy and as such the charges levelled under Sections 7 and 13 (2) of the Prevention of Corruption Act were not found to be proved. Consequently, the Court below acquitted the appellant from the said charges. However, the Court below convicted the appellant under sections 420, 468 and 471 of the Indian Penal Code as according to the court below, the prosecution did succeed in proving that the accused forcibly took the pay card (bonus card) from the complainant and through it he took payment of Rs. 2929/- by putting his LTI over the pay slip of the complainant, though the said money was to be paid to the complainant and thereby the court below found the appellant guilty for the said charges and sentenced the appellant as aforesaid. ( 6 ) BEING aggrieved with that the appellant has preferred this appeal. ( 7 ) LEARNED counsel appearing for the appellant submits that the appellant in the facts and circumstances of the case cannot be said to have fraudulently or dishonestly took the payment of Rs. 2929/- by putting his LTI on the pay slip of the complainant as P. W. 6, who tendered money was quite known to the appellant and as per his evidence he gave money to the appellant in good faith and the complainant never complained of before any authority about withdrawing of his wages by the appellant. 2929/- by putting his LTI on the pay slip of the complainant as P. W. 6, who tendered money was quite known to the appellant and as per his evidence he gave money to the appellant in good faith and the complainant never complained of before any authority about withdrawing of his wages by the appellant. ( 8 ) AS against this, learned counsel appearing for the CBI submits that it is a specific case of the prosecution that the appellant took payment of money by putting his lti on the pay slip of the complainant and, therefore, he has rightly been convicted by the trial Court. Learned counsel further submits that though no appeal has been preferred by the CBI against that part of the judgment by which the appellant was acquitted of the charges levelled under Sections 7 and 13 (2) of the Prevention of Corruption Act but as this appeal preferred by the appellant is before this court, this court may reappraise evidences which are on record and come to independent finding on the charges under which he has been acquitted. ( 9 ) HAVING heard learned counsel appearing for the parties, the first question which fell for consideration is as to whether the trial court has erred in convicting the appellant under Sections 420, 468 and 471 of the Indian Penal Code, I may point it out that the court below has held that the appellant forcibly took the pay card of the complainant and withdrew the money and for coming to this conclusion the court below perhaps relied upon the evidence of P. W. 8 and P. W. 6. From the evidence of P. W. 8 it appears that he has testified that when the complainant made complaint before the superintendent of Police, CBI, the matter was referred to him for its verification and in course of verification when he came before the appellant along with complainant, the appellant asked for Rs. 200/- to which the complainant told him that presently he is not having Rs. 200/- Thereafter the appellant asked to the complainant as to whether he has taken salary to which complainant answered in negative. Thereafter the appellant took the pay card on the plea that unless he gives Rs. 200/- the said pay card will not be returned to him. 200/- Thereafter the appellant asked to the complainant as to whether he has taken salary to which complainant answered in negative. Thereafter the appellant took the pay card on the plea that unless he gives Rs. 200/- the said pay card will not be returned to him. Upon it, the complainant told him that he will come tomorrow with Rs. 200/- but surprisingly the fact about taking of the pay card (bonus card) by the appellant has not been mentioned by P. W. 8 in his verification report (Ext. 6) where it has simply been stated that the appellant just asked the complainant to give his pay card. Nowhere it has been mentioned in Ext. 6 that actually the pay card was taken by the appellant. On the other hand, from the evidence of P. W. 5, the complainant as has been given in examination-in-chief it appears that pay card was with the complainant from before. However, in the cross-examination he as contained in paragraph 17 has made it clear that the pay card was with the appellant since May, 1993. This witness nowhere has said that the appellant had forcibly taken his pay card (Ext. iv ). Thus, the testimony of P. W. 8 that the appellant took the pay card of the complainant cannot be believed. Secondly, there does not appear any evidence to the effect that the appellant forcibly took the pay card of the complainant. In this background, it is to be considered as to whether the appellant can be said to have committed the offence under Section 420 of the Indian Penal code or not. Before proceeding further provision as contained in Section 420 of the indian Penal Code needs to be taken notice of which reads as under: "cheating and dishonestly inducing delivery of property:-Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. " From its perusal it appears that offence of cheating is made up of two ingredients namely, (i) deceit i. e, dishonest or fraudulent mispresentation and (ii) inducing that person to deliver any property to any person. ( 10 ) FOR establishing the charge under this section it is necessary that there should be direct connection between the false representation and the delivery of the property for doing something by the person deceived. It is also necessary that the act or the omission complained of should cause or is likely to cause damage or harm to the person in body, mind, reputation or property. ( 11 ) IN the instant case, as has been noted above, the appellant cannot be said to have represented to the complainant for delivering the pay card, nor it is the case of the complainant that the pay card was delivered by him to the appellant so that it be kept by the appellant as security till Rs. 200/- is paid. I may reiterate here that though P. W. 8 in his evidence has testified in this respect but his evidence has not found to be correct. It is true that the pay card has been recovered from the possession of the appellant. But definitely there has been no evidence that the appellant took the pay card of the complainant fraudulently or dishonestly. It may be remembered that it is the case of the defence that he had given rs. 3000/- to the appellant at the time of marriage of his daughter. Therefore, possibility of keeping the pay card of the complainant by the appellant as a security till the loan amount is repaid cannot be ruled out. Thus, in the facts and circumstances, I do find that prosecution has failed to prove the charges even under Section 420 of the indian Penal Code. Next comes to the question as to whether the complainant has committed offence under Section 468 or not. Evidently the appellant by putting LTI on the pay card (Ext. 5) of the complainant took the payment of Rs. 2929/ -. Section 468 of the Indian Penal Code gets attracted only in cases where offence of forgery is committed for the purpose of cheating. What is forgery that has been defined under Section 463 and section 464 of the Indian Penal Code defines about the false document. 5) of the complainant took the payment of Rs. 2929/ -. Section 468 of the Indian Penal Code gets attracted only in cases where offence of forgery is committed for the purpose of cheating. What is forgery that has been defined under Section 463 and section 464 of the Indian Penal Code defines about the false document. Reading both provisions as contained in Sections 463 and 464 of the Indian Penal Code together one can be said to have committed forgery if he makes a document for another without his lawful authority provided that is made dishonestly or fraudulently. In every case of forgery where question of authority is raised, it is essential to prove not only lack of authority but also dishonest intention. The reason being that mere abuse of authority would not necessarily lead to a conclusion that there is a forgery. ( 12 ) IT is well settled that if a person has authority of another to write the name of that person it is not forgery provided that he had fair ground for considering that he had such authority and did so without defrauding or injuring any one. Coming to the fact of the case, I may again reiterate that it is not a case of the complainant that by deceitful means the appellant took pay card from the complainant, rather the circumstances indicate as has been observed earlier that the complainant allowed the appellant to have his pay card supposedly for taking salary of the complainant as it was never the case of the complainant that pay card was kept as a security to get illegal alleged demand fulfilled. Had the appellant taken out the money deceitfully, withdrawal of which was known to the complainant the same day, natural conduct on the part of the appellant would have been to make complaint to any authority. But evidence in this regard as testified by the complainant in his evidence at paragraph 19 is otherwise where he says that he never made any complaint before anyone when the appellant did not return the pay card. But evidence in this regard as testified by the complainant in his evidence at paragraph 19 is otherwise where he says that he never made any complaint before anyone when the appellant did not return the pay card. Moreover, it is not the case of the prosecution that the appellant by playing fraud put his LTI on the pay slip as that of the complainant, rather it is the case of the prosecution that appellant by putting his LTI on the pay card of the complainant took the payment when P. W. 6 who was quite known allowed the complainant to withdraw the amount. ( 13 ) REGARD being had to the facts and circumstances of case as well as case of defence it can be easily said that the prosecution has failed to establish that the appellant without any authority withdrew the amount fraudulently or dishonestly and in that view of the matter, the court below seems to have been wrongly convicted the appellant under Section 468 as well as under Section 471 of the Indian Penal Code. ( 14 ) SO far submission advanced on behalf of the CBI that this Court being a court of appeal can go to the legality of the order acquitting the appellant if grounds on which order of acquittal was made is found to be illegal or unjustified, finding of acquittal can be reversed, is concerned, it has got no legal force to stand with. It has been held way back in the year 1956 in a case of Pritam singh v. State of Punjab, reported in AIR 1956 SC 415 that unless there is an application against acquittal, it remains in force and is binding in all subsequent proceeding between the parties to the adjudication inasmuch the same way as principle of res judicata in civil cases. It has been further held that except in exercise of revisional power under Section 401 subject to limitations prescribed therein, it is not open to the High Court to order of retrial on the charges on which the accused was acquitted by the trial Court in an appeal by the accused against his conviction. It has been further held that except in exercise of revisional power under Section 401 subject to limitations prescribed therein, it is not open to the High Court to order of retrial on the charges on which the accused was acquitted by the trial Court in an appeal by the accused against his conviction. That apart, if I take into consideration the provisions of sections 300, 378, 386 as well as 397 of the code of Criminal Procedure, the logical conclusion would be that where an accused is acquitted and no appeal is filed against his acquittal under Section 378 of the Code of criminal Procedure, the accused gets vested right to plead under Section 300, that right can only be affected in the case of an appeal by State under Section 378 of the Code of criminal Procedure or by the exercise of power by the High Court under Section 401 suo motu or on an application by the complainant and certainly not by the State. ( 15 ) REGARD being had to the facts and circumstances, as stated above, I do find that the trial Court has wrongly convicted the appellant under Sections 420, 468 and 471 of the Indian Penal Code and hence judgment and order passed by the trial court is hereby set aside. In the result, this appeal is allowed and the appellant is acquitted of the said charges and is discharged from the liability of the bail bonds. --- *** --- .